New Jersey Supreme Court Rules to Protect Social Media Users’ Communications

June 29, 2023

In an opinion released today, the New Jersey Supreme Court ruled that law enforcement cannot do an end run around the Wiretap Act when they want to force social media companies to provide users’ communications for a period of time. The opinion agreed with EPIC’s amicus brief—co-written with EFF, CDT, and Davis Wright Tremaine—supporting Meta in the case. EPIC’s brief urged the New Jersey Supreme Court to rule that police need a wiretap order if they want Facebook to provide them with users’ future communications in 15-minute increments. This is an important protection because wiretap orders have extra protections that regular search warrants do not. The New Jersey police tried to get by without a wiretap order based on a technicality: Facebook’s servers store the communications, so they weren’t asking to intercept the communications like a traditional wiretap or secret recording device does. EPIC, EFF, and CDT’s amicus brief explained that this technicality is legally meaningless: electronic communications are sensitive and deserve the wiretap statutes’ protections. The New Jersey Supreme Court agreed, writing, “The nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection.” The Court recognized that the internet and new technologies require a careful look at older laws to ensure their spirit is maintained: “A strict contemporaneity rule adopted before the advent of the Internet would not be a good fit to address the situations technology presents today. Nor would it be consistent with the underlying purpose of the wiretap statutes — to protect individual privacy.”

EPIC regularly submits amicus briefs in cases involving communications privacy.

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